92 Decision Citation: BVA 92-26683
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-55 586 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) rating for
bilateral defective hearing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
This matter came before the Board on appeal from a rating
decision of December 1990 from the Washington, D.C.,
Regional Office. The veteran had active military service
from October 1961 to August 1962, from June 11 to June 16,
1963, from September 10 to September 12, 1963, and from
November 1966 to September 1972. The notice of disagreement
was received in August 1991. A statement of the case was
issued in October 1991. The veteran's substantive appeal
was received in November 1991. The appeal was received and
docketed at the Board in February 1992. A hearing was held
before a section of the Board of Veterans' Appeals in May
1992. The veteran is represented by the Disabled American
Veterans. The case is now ready for appellate review.
We note upon review of this case that the veteran apparently
seeks entitlement to service connection for chronic
tinnitus. Inasmuch as this particular issue has not been
developed or certified for appellate review, it is not for
consideration at this time. It is referred to the regional
office for further development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran's primary argument is that the regional office
committed error in denying entitlement to an increased
rating for service-connected bilateral defective hearing in
that the various manifestations of that disability are more
severe than currently evaluated, and productive of a greater
degree of impairment than is reflected by the noncompensable
schedular evaluation presently assigned. It is asserted
that, as a result of the veteran's service-connected hearing
loss, he has experienced many and varying difficulties in
his daily life. Specifically, it is asserted that he has
experienced particular difficulty in his employment as an
alarm systems technician, thereby warranting the assignment
of a compensable evaluation on an extraschedular basis
pursuant to the provisions of 38 C.F.R. § 3.321(b) (1991).
It is requested that the provisions of 38 C.F.R. § 4.7
(1991) be applied.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claim for an increased evaluation,
on either a schedular or extraschedular basis, for
service-connected bilateral defective hearing.
FINDINGS OF FACT
1. The veteran has level I hearing in each ear.
2. The veteran's bilateral defective hearing produces
neither marked interference with employment nor a need for
frequent hospitalizations.
CONCLUSION OF LAW
A compensable evaluation, on either a schedular or
extraschedular basis, for service-connected bilateral
defective hearing is not warranted. 38 U.S.C.A. §§ 1155,
5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7,
4.85, and Part 4, Code 6100 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, we note that we have found that the veteran's
claim is "well-grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). That is, we find that he has
presented a claim which is plausible. We are also satisfied
that all relevant facts have been properly developed. No
further assistance to the veteran is required in order to
comply with the duty to assist him mandated by 38 U.S.C.A.
§ 5107(a) (West 1991).
Disability evaluations, in general, are intended to
compensate for the average impairment of earning capacity
resulting from a service-connected disability. They are
primarily determined by comparing objective clinical findings
with the criteria set forth in the rating schedule.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average
hearing threshold level as measured by pure tone audiometry
tests in the frequencies 1,000, 2,000, 3,000, and 4,000
cycles per second. To evaluate the degree of disability
from bilateral service-connected defective hearing, the
revised rating schedule establishes 11 auditory acuity
levels, designated from level I for essentially normal
acuity through level XI for profound deafness. 38 C.F.R.
§ 4.85 and Part 4, Codes 6100 to 6110 (1991). In
exceptional cases where the schedular evaluations are found
to be inadequate, an extraschedular evaluation commensurate
with the average earning capacity impairment due exclusively
to the service-connected disability or disabilities may be
approved provided the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1)
(1991).
Service connection is currently in effect for bilateral
defective hearing, first noted at the time of the veteran's
separation from active service. On a recent Department of
Veterans Affairs (VA) audiometric examination in October
1990, pure tone air conduction threshold levels, in decibels,
for the frequencies 1,000 hertz, 2,000 hertz, 3,000 hertz,
and 4,000 hertz in the veteran's right ear were 30 decibels,
45 decibels, 45 decibels, and 45 decibels, respectively, for
a pure tone average of 41 decibels, with speech discrimina-
tion ability of 100 percent. Pure tone air conduction
threshold levels, in decibels, for those same four fre-
quencies in the veteran's left ear were 35 decibels,
50 decibels, 50 decibels, and 60 decibels, respectively, for
a pure tone average of 49 decibels, with speech discrimina-
tion ability of 96 percent. Such audiometric findings are
commensurate with level I hearing in each ear, and are
consistent with the noncompensable evaluation presently
assigned. The provisions of 38 C.F.R. § 4.7 (1991) are not
for application, inasmuch as the rating schedule contains
specific criteria, in terms of audiometric test results, for
a compensable rating. Those criteria have not been met,
and, consequently, we are therefore unable to reach a
favorable decision in this matter.
We note the assertion by the veteran's accredited repre-
sentative to the effect that, inasmuch as the veteran's
service-connected hearing loss has resulted in certain
problems in the veteran's employment, he should be awarded a
compensable evaluation for bilateral defective hearing on an
extraschedular basis. In that regard, we acknowledge that,
in correspondence from the veteran's employer dated in
December 1981, it was noted that the veteran's service-
connected hearing loss resulted in a necessity to, at times,
repeat various instructions in order that it might be certain
that the veteran had, in fact, understood them. Such
repetition, while admittedly inconvenient, does not constitute
such a marked interference with employment as to render
impractical the application of the regular schedular standards
for evaluation of defective hearing. Consequently, an award
of increased benefits for service-connected bilateral defective
hearing on an extraschedular basis is not warranted.
In reaching the above determination, we have given due consid-
eration to the doctrine of reasonable doubt, but find that the
evidence is not so evenly balanced as to be in equipoise.
ORDER
An increased (compensable) rating for bilateral defective
hearing, on either a schedular or extraschedular basis, is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
GEORGE R. SENYK
BRUCE E. HYMAN
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business without
awaiting assignment of an additional Member to the Section
when the Section is composed of fewer than three Members due
to absence of a Member, vacancy on the Board or inability of
the Member assigned to the Section to serve on the panel. The
Chairman has directed that the Section proceed with the
transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice of
the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed with
the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of this
decision which you have received is your notice of the action
taken on your appeal by the Board of Veterans' Appeals.